Intellectual property (2023): Fair dealing

Fair dealing is a limitation and exception to the exclusive rights granted by copyright law to the author of a creative work. Fair dealing is found in many of the common law jurisdictions of the Commonwealth of Nations.

Fair dealing is an enumerated set of possible defenses against an action for infringement of an exclusive right of copyright. Unlike the related United States doctrine of fair use, fair dealing cannot apply to any act which does not fall within one of these categories, although common law courts in some jurisdictions are less stringent than others in this regard. In practice, however, such courts might rule that actions with a commercial character, which might be naïvely assumed to fall into one of these categories, were in fact infringements of copyright, as fair dealing is not as flexible a concept as the American concept of fair use.

There are similar limitations and exceptions to copyright, such as the right to quote, also in the Berne Convention and in the laws of civil law jurisdictions.

By country.

United States.

The parallel concept in United States copyright law is fair use. The term "fair dealing" has a different meaning in the U.S. It is a duty of full disclosure imposed upon corporate officers, fiduciaries, and parties to contracts. In the reported cases, it usually arises in the context of the "implied covenant of good faith and fair dealing", which underlies the tort cause of action for insurance bad faith.

Canada.

The Canadian concept of fair dealing is similar to that in the UK and Australia. The fair dealing clauses of the Canadian Copyright Act allow users to engage in certain activities relating to research, private study, education, parody, satire, criticism, review, or news reporting. With respect to criticism, review, and news reporting, the user must mention the source of the material, along with the name of the author, performer, maker, or broadcaster for the dealing to be fair.

Prior to 2011, fair dealing in Canada was not definitely found to contain exceptions for parody (unlike fair use in the United States), but the Copyright Act has since been amended to include parody and satire (along with educational use) under its fair dealing provisions. Previously, a Quebec Court of Appeal in Les productions Avanti Cine Video v Favreau (4 August 1999) had recognized that parody could potentially be a 'critique', but it refused to recognize the exception in that circumstance.

The 2004 ruling by the Supreme Court of Canada in CCH Canadian Limited v Law Society of Upper Canada has gone far in clarifying the concept of fair dealing in Canada. In considering fair dealing the Court makes the following general observation:

It is important to clarify some general considerations about exceptions to copyright infringement. Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defense. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user's right. In order to maintain the proper balance between the rights of a copyright owner and users' interests, it must not be interpreted restrictively.

Furthermore, by taking "a liberal approach to the enumerated purposes of the dealing", the Court has made fair dealing more flexible, reducing the gap between this provision and US fair use.

--- Support this podcast: https://podcasters.spotify.com/pod/show/law-school/support